Joint Committee on Health debate -
Wednesday, 9 Nov 2022

General Scheme of the Health (Termination of Pregnancy Services (Safe Access Zones)) Bill 2022: An Garda Síochána

Chairman

The purpose of the meeting today is for the joint committee to discuss the general scheme of the health (termination of pregnancy services (safe access zones)) Bill, which has been referred to us for pre-legislative scrutiny. The committee has already met officials from the Department of Health in relation to the Bill and we received a number of submissions from key stakeholders. To enable the committee to consider this matter further, I am pleased to welcome representatives from An Garda Síochána, Ms Anne Marie McMahon, deputy commissioner, policing and security; Ms Kate Mulkerrins, executive director; Mr. Michael McNamara, superintendent; and online, Ms Helen Deely, superintendent; and possibly Ms Paula Hilman, assistant commissioner. They are all very welcome.

All present in the committee room are asked to exercise personal responsibility to protect themselves and others from the risk of contracting Covid-19.

Witnesses are reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if any of their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against persons outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members of the constitutional requirement that they must be physically present within the confines of the Leinster House complex to participate in public meetings. I will not permit a member to participate where he or she is not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting. In this regard, I ask members partaking via MS Teams to confirm, prior to making their contributions, that they are on the grounds of the Leinster House complex.

I invite Deputy Commissioner McMahon to make her opening remarks.

Ms Anne Marie McMahon

On behalf of An Garda Síochána, I extend my thanks for the opportunity to address the committee today and to provide a submission on the general scheme of the health (termination of pregnancy services (safe access zones)) Bill in advance of this meeting.

I will speak about the Bill from an operational policing perspective. An Garda Síochána welcomes the proportionate approach outlined in the Bill. We welcome the proposed graduated response whereby it is intended that engagement with individuals will occur before any enforcement, which is similar to the approach taken to Covid-19 legislation. In that regard, An Garda Síochána utilised a four-E approach: educate, engage, encourage and enforce. This served well An Garda Síochána and the communities it serves. An Garda Síochána intends to adopt a similar approach to the implementation of the proposed legislation.

However, I would like to highlight the policing concerns we have that the committee may wish to consider. These primarily relate to the parameters of the safe access zones, the issuing of warnings, Garda powers and the specific offence of harassment. On safe access zones, the difficulty from a policing perspective is the lack of clear demarcation lines on the limits of the zones in a practical sense.

An Garda Síochána has concerns about the practicalities of a warning given for a specific zone and this warning remaining in place for a zone in another part of the country. A fresh express warning in respect of each safe access zone would be more effective from a policing perspective.

Second, there is a practical issue regarding the issuing of warnings in a crowd setting to individuals specifically. An Garda Síochána requests that consideration be given to the provision of a general or crowd warning by way of signage or an announcement by loud-hailers.

While the proposed powers within the Bill are noted, they fall short of providing An Garda Síochána with an effective investigatory tool in the context of detentions or searches and seizures of evidence where suspected offences are serious in nature. For example, where there is repetitive intimidation or harassment of a service provider under the Bill, there is no power to detain individuals or conduct searches as the proposed offences are summary in nature. An Garda Síochána suggests that the specific offence of harassment be reconsidered in the context of the Bill in light of the existing offence of harassment available under the Non-Fatal Offences Against the Person Act 1997 and the existing proposed offence of harassment and stalking under the Criminal Justice (Miscellaneous Provisions) Bill 2022.

An Garda Síochána looks forward to assisting this committee to ensure the Bill is effective from an operational policing perspective.

Chairman

I thank Ms McMahon. I will open up the discussion. The delegates know the format; it involves questions and answers. Each member is given roughly ten minutes in which to engage with the delegates. I will start off with Senator Conway.

Senator Martin Conway

I thank Deputy Commissioner McMahon and her team for attending today. She has outlined some very practical concerns that An Garda Síochána has with the proposed legislation. As a committee, we have a duty and responsibility to articulate these on behalf of the Garda and to ensure our pre-legislative scrutiny reflects them.

The termination-of-pregnancy legislation has now been in place for several years. Has An Garda Síochána dealt with incidents at facilities providing terminations? Have there been arrests? Are there ongoing court proceedings? Have people been prosecuted? What is the current position? What has been the experience of the Garda to date at facilities that provide termination services?

Ms Anne Marie McMahon

I thank the Senator. There have been protests and we have attended at the locations. Regarding the Bill, what is proposed for safe access zones does not currently exist. I understand it is the purpose and intent of the Bill to provide these.

To the best of my knowledge, there have been no prosecutions. We will be relying on existing legislation, be it public order legislation or otherwise, depending on the circumstances. On the primary question, protests have taken place and we have dealt with them as best we could within the existing legislative framework.

Senator Martin Conway

This law is being introduced because of feedback to the effect that there is intimidation at some of the facilities. Has Ms McMahon statistics on how often Garda support or services were requested at termination facilities?

Ms Anne Marie McMahon

I do not have specific statistics but we have on several occasions been called to deal with the protests described by the Senator.

Senator Martin Conway

As for other laws of the land that would apply, including in respect of public order offences and intimidation, have there been any arrests associated with protests?

Ms Anne Marie McMahon

To the best of my knowledge, there have not been.

Senator Martin Conway

On the safe access zones in general, the only parallel that exists is the 50 m rule applying to canvassing and intimidation at polling stations. The Garda seems to have dealt with this very effectively.

Clearly, the Garda has concerns about being able to implement what is being proposed here. The four-E approach that is proposed has worked in the context of many laws and not just Covid regulations. Is it serious concern or is it simply identifying issues? Is there a serious feeling that the Garda may not be able to implement it?

Ms Anne Marie McMahon

This goes to the nub of the issue. Where does the 100 m zone begin and end? That is from both perspectives. We are talking about two competing rights here and we have to respect both. It is really important that both sides know when an infringement is taking place and, equally, when a party should, could and is entitled to expect that free access zone. It is about being clear so that we can be fair with everybody and that there is no ambiguity on where the zone begins and ends.

In terms of prosecution, if we work our way though all the four Es, this will end up in court. As a result, it is really important that everyone is clear on what the parameters are and when they are infringed, regardless of one's perspective.

Senator Martin Conway

This system exists in other countries. Has An Garda Síochána engaged with international colleagues at European level on how they manage it? Has it had any formal or informal engagements internationally?

Ms Anne Marie McMahon

I will ask Ms Mulkerrins to come in there.

Ms Kate Mulkerrins

As part of our preparation for today we have viewed the international literature on this on a desk basis. The Senator is correct on the international aspect. North America is probably the most extreme example rather than European examples. Many of the European countries have had free, legal and safe access to such services for decades. The rise of a protest group with very fundamental religious-based views is not a phenomenon that is unknown here. On the way here, I was recounting the history of the opening of contraception services close to what is now University of Galway decades ago as an example of that. As the Senator said, An Garda Síochána has the responsibility of policing the competing constitutional rights, on access and fair and reasonable protest. The delineation line is the most important point, we feel, for determining the conduct. Conduct that would be lawful outside of that zone, that is peaceful protest, becomes potentially an offence simply by entering the zone if that conduct within the zone is of the intimidatory nature that the legislation seeks to punish.

Senator Martin Conway

Sorry -----

Ms Kate Mulkerrins

The quick answer is that we have done a desk-based review but this is a matter that we can bring to our colleagues in Europol to have a refined understanding. The Commissioner and the deputy commissioner have been very clear that our Covid policing experience is very relevant to the approach that will be taken.

Senator Martin Conway

Having been on the oversight committee for Europol in the previous Oireachtas, I know it could certainly help with that. I genuinely understand the concerns An Garda Síochána has about policing this proposed law. Our deliberations here will have to reflect those difficulties and challenges. Parallel to that, women who need and seek a termination should be able to do so in comfort without fear of any kind of intimidation. That is what the people voted for in the referendum back in 2018. Clearly it is new ground. It is tricky, and the Garda concerns need to be listened to and reflected in this legislation.

Deputy David Cullinane

I welcome the deputy commissioner and her team. I will begin with a general question. Have members of An Garda Síochána had to respond to any complaints made of harassment and intimidation, even in the absence of legislation?

Ms Anne Marie McMahon

Yes.

Deputy David Cullinane

Turning to the areas of concern in the opening statement, the first is the parameters of the safe access zones. I want to tease that out to see if it is more to do with definitions of what the parameters are or the practicality of actually policing this. Looking at the draft heads of Bill, it seems to have definitions for safe zones, healthcare premises, healthcare provider, curtilage and so on. Obviously, precise definitions are really important from a policing perspective. When Ms McMahon says there are some concerns that relate to the parameters of the safe access zones, is that definitions of what is a safe access zone or practically how it can be implemented?

Ms Anne Marie McMahon

It is the latter. The Deputy is correct that the definition and the parameters are important but it is the practicalities of these locations. They are not universal in how they are constructed. There are different egress and access areas, they could be in the middle of a shopping complex and there could be other services there. There are all sorts of complexities around the practical application of this. That is where the tensions will arise.

Deputy David Cullinane

Is that more from the perspective of an individual premises and where one interprets what is the zone?

Ms Anne Marie McMahon

Yes.

Deputy David Cullinane

Even though there are precise definitions, the Garda has to work that out for each particular centre. So, for instance where GP surgeries might not be in stand-alone facilities. Is that the concern?

Ms Anne Marie McMahon

That is precisely it, yes.

Deputy David Cullinane

Can anything be done to enhance the Bill on that or is it just one of those practical things the Garda will have to manage?

Ms Anne Marie McMahon

It is one of those practical things. It is very difficult to legislate for every type of eventuality but the whole area of signage would be very helpful. That is not a clear cut suggestion or solution. It is just one of those things that is very difficult to pin down or to articulate what the various nuances might be. Signage is one thing that we have discussed that might help around what a safe access zone is but there may be unintended consequences in doing that too.

Deputy David Cullinane

The second issue that was raised was that of warnings. I hear what is being said here from a practical perspective that if someone is issued a warning in zone A and then turns up at zone B, a different healthcare facility, how is that monitored? How would it work if there is was a previous warning or caution, whatever terminology we use, or one from a different healthcare setting? Ms McMahon stated that a fresh express warning in respect of each safe access zone would be more effective from a policing perspective.

Head 4(5) states: "A member of the Garda Síochána who believes, with reasonable cause, that a person has engaged, is engaging, or will engage in prohibited conduct may issue a warning to that person to cease engaging or not to engage in prohibited conduct." A paper prepared by the committee's secretariat makes the point that this may inevitably be required to maintain records. If someone is cautioned in relation to their behaviour, are records kept? Would records be kept of such a warning?

Ms Anne Marie McMahon

The offence is what will be recorded on PULSE. We suggest that the existing public order Act is probably similar to the proposed Bill in how we implement it. Somebody is given a warning to desist from whatever behaviour it is and then given a warning to leave the area. It is only if he or she fails or refuses to leave the area that enforcement comes into play. We see something similar in how we would apply the proposed legislation. It ties in with the four-E approach as well in terms of educating, giving somebody the warning and asking him or her to-----

Deputy David Cullinane

My question is whether it is possible to keep records of warnings. I imagine that if there were a record of warnings, it would be much easier, from a policing perspective, to manage serial offenders in multiple locations. In the absence of record-keeping, people could just move on from one healthcare facility to another, getting warnings in each one, and the Garda would not really be able to do anything about it if gardaí had to issue fresh warnings at every healthcare facility. If, however, the warnings were consistent across all facilities, and if that could be tracked through record-keeping, I imagine that, from a policing perspective, that would be more beneficial. The question, then, is whether it is allowable or permissible to keep records of warnings in this instance.

Ms Anne Marie McMahon

It is in the context of the offence being alleged. I can answer the Deputy's question in a couple of ways. First, if you were to give that general application, you would need to know who you are dealing with, that is, you would have to take the names and addresses of whomever you are giving the warning to.

Deputy David Cullinane

Is it not stated in the proposed Bill that they are obliged to give their names?

Ms Anne Marie McMahon

Yes.

Deputy David Cullinane

They have to give their names and addresses. Let us just imagine they do so and are given a warning. My question is fairly straightforward. Can a record be kept? I am not asking whether the proposed Bill suggests it should be or whether that is the witnesses' view. I am asking whether, legally, it can be done.

Ms Anne Marie McMahon

There is nothing to stop a warning being recorded in the PULSE narrative per se. I am thinking from a practical perspective about whoever the individuals are moving from A to B and how quickly that would be done. With the introduction of body cameras, we will have an immediate record of whatever behaviour is alleged or whatever infringement may occur. Body cameras will assist us in that we will have a factual record of whatever infringement we are dealing with. The offence is in not leaving. The Deputy is right to ask, if a person goes from premises A to premises B, whether he or she will continue to commit an offence.

Deputy David Cullinane

This is pre-legislative scrutiny so, in fairness to the witnesses, they are right that they have to flag concerns from a policing perspective as to what is practical and what can be done. I fully appreciate that. Our job, then, is to interpret all the submissions and observations made about the Bill in order to make it more effective if needs be. I understand that this is a difficult area to deal with. There is a balance in that, on the one hand, people have the right to protest but, on the other, they certainly do not have the right to stop people getting the healthcare they need. That is the balance being struck. Equally, from a policing perspective, I appreciate the difficulties. As for the issue of warnings, is there anything more that can be done in the context of the proposed Bill to help An Garda Síochána? Does the Garda have an ask in the context of the Bill or are the witnesses satisfied that what is in the Bill is as far as can be gone?

Ms Anne Marie McMahon

I will bring in our executive director, legal.

Ms Kate Mulkerrins

I will go back to the first point, which was why signage is so important. We will take a real example of a protest that occurred close to but not in what would be an exclusion zone around the Rotunda, on Parnell Square. There were 2,000 participants. If we were to give a general warning to cease and desist and to move outside the zone to 2,000 people, there would be the practical points the Deputy makes as to whether we would be able to engage and to address 2,000 people and take all the relevant details. If they were then to move on to a second or third location without proper signage, they would have the potential defence that it is not a strict liability offence as intended, although we can talk more about mens rea. They would have the reasonable excuse that they did not know until the second warning at the second location that they had infringed the safe parameters. They are inextricably-----

Deputy David Cullinane

Signage is key.

Ms Kate Mulkerrins

Signage is important. It is not the only important thing because all the elements link together. Mens rea is key here. The intention is to create a strict liability offence, by my understanding, in which case, in my view, avoiding a defence of honest mistake in respect of the parameters will be problematic if, exactly as the Deputy said, people move in numbers. It is a combination of all those things: people moving in numbers, a lack of signage and an inability to take names and addresses.

Deputy Cullinane's point about body cameras is key because, obviously, ex post facto intel can potentially identify the persons who have been warned more than once and if an organised group reappears. We saw that during Covid, when there were protests - from memory, in Kildare - involving signage of foetuses in buckets that many people found offensive and reports from the general public. That was a small number of persons, however, and we had the evidence of the signs held, which, again-----

Deputy David Cullinane

I have just one more question.

Ms Kate Mulkerrins

Sorry.

Deputy David Cullinane

Not at all. I thank Ms Mulkerrins for that. It is really helpful.

The deputy commissioner mentioned the specific offence of harassment. That is a really important one because what we are all concerned about is harassment or intimidation of women and people who will potentially use these services. Is there a difference in definitional terms between harassment and intimidation? Should we include intimidation as well in the Bill or is harassment sufficient? What are the witnesses concerns about that issue? To me, that will go to the heart of the effectiveness of the Bill. Harassment and intimidation of people are horrific for anybody to have to deal with. Could the witnesses outline their concerns in that area? Also, because I will not have the time to come back in, do they have an observation to make or is there something that can be improved in the Bill in that area?

Ms Anne Marie McMahon

I have an observation on the offence of harassment and intimidation. We have section 10 of the Non-Fatal Offences Against the Persons Act, as I outlined in my opening remarks. There is also the proposed offence of stalking and harassment. The whole idea is whether or not there is need for a further offence of stalking, harassment or intimidation. Our submission is that we are well served and will be when the additional offence comes into law. Adding another offence of stalking or harassment could make busier something that is already busy. We feel that the existing legislation is sufficiently robust to meet whatever challenges may present in this context.

Senator Frances Black

I thank the Cathaoirleach letting me come in a little early. Unfortunately, I will have to leave for something happening at 11 a.m. I thank our witnesses for coming in. I have only a couple of questions.

I wish to ask about New Zealand. Recently, New Zealand introduced a version of safe access zones. Breaches of those zones are punishable by fines of up to 1,000 New Zealand dollars. Do the witnesses think the introduction of fines could help deter protesters in these areas? What are their thoughts on that?

Ms Anne Marie McMahon

I will ask Ms Mulkerrins to answer that question.

Ms Kate Mulkerrins

Again, the Covid experience is hugely relevant here. The vast majority of the population abide by rules of law not because of the penal provisions that prevail. Non-paid fines, in and of themselves, create a whole series of unintended consequences for the criminal justice system. We see that in the unpaid Covid fines that led to vast numbers of summonses. The problem here is that we do not know whether we are going to be dealing with significant numbers of protestors or a small number of recidivists. If it is a small number of recidivists and there is a moral objection to paying that fine then that leads to further serious implications for those individuals. So one could say that a fine is a useful tool of escalation to deter initially and only the most determined recidivists will not pay and face penal consequences.

As a career criminal lawyer and a prosecutor for ten of those years my experience is that it is not the penalty itself but the social opprobrium heaped upon the offence in question that counts. I give the example of drink driving, which we had tolerance for in every jurisdiction until there was a mindset change. Reinforcing that, the most significant part of that penalty was in fact the loss of the licence not the fine, in my view. So in and of itself, the final penalty is less important to An Garda Síochána than the tools to deal with the incident at the crisis point, which is where the harm is done. Diminishing that harm immediately requires, as has been said, a suite of tools to allow for proper investigation of the matter, which may then mean proper investigation, a search facility and an arrest circumstance at a lower stage of acceleration. Whether it is a fine or a penalty more significant is, I think, of less concern. I hope that I have articulated the position of An Garda Síochána,

Senator Frances Black

In the submission it was mentioned that consideration should be given to the register of service providers to target the enforcement of safe access zones. I agree with that as it is a very good idea. I imagine that this list would be incredibly helpful to those who seek to access abortion services but it might also run the risk of attracting additional protests. Does the delegation think that is possible? Please elaborate on how the register would assist the work of An Garda Síochána and whether the list should be made public.

Ms Anne Marie McMahon

As the Senator will be aware, there is a list on the website. In fact, it is not a complete list but certainly there are some premises that do offer services which are already listed on the website.

Again, I look at this matter from the perspective of An Garda Síochána. In terms of identifying locations and organising a policing response, that is where it would be helpful for us.

I accept with what the Senator said about the possibility of unintended consequences from enumerating or listing every facility. We are here in the context of providing the policing response in the most appropriate way and in the most prompt way possible so in that context it certainly would be helpful to us.

Senator Frances Black

I thank the Chair and members for allowing me to comment and ask questions. Finally, I thank the witnesses.

Deputy Róisín Shortall

I welcome the deputy commissioner and all of her team. I thank her for her presentation.

The deputy commissioner has raised some very fundamental points about this proposed legislation. I think that we all have the same aim of ensuring that we have a robust piece of legislation that is clearly enforceable. The deputy commissioner has raised a lot of questions and I will turn some of them back on her in order to find solutions to some of the problems that she has raised.

What engagement has An Garda Síochána had with the Department of Health and its legal advisers on some of the main provisions of this legislation?

Ms Anne Marie McMahon

I, personally, have not had any engagement but Superintendent McNamara has and he is a member of my team. Does the Deputy wish to hear from him?

Deputy Róisín Shortall

I am curious to know why there are so many outstanding issues that need to be addressed. Why have some of those very serious points that the Garda Síochána has raised not been addressed adequately by the Department?

Dr. Michael McNamara

I met the Department online on Monday last and all of the issues that we have raised here are under active consideration by the Department. The Department has now identified them in consultation with the Office of the Attorney General.

Deputy Róisín Shortall

Was that the first meeting?

Dr. Michael McNamara

It was the first meeting that I have had with the Department.

Deputy Róisín Shortall

Has there been no earlier consultation with An Garda Síochána?

Ms Anne Marie McMahon

No. That is the first meeting that we have had.

Deputy Róisín Shortall

That is surprising.

Chairman

That is contrary to what we were told at the committee.

Deputy Róisín Shortall

Yes.

Ms Anne Marie McMahon

None of the three of us here has met, other than the meeting that Superintendent McNamara had on Monday.

Deputy Róisín Shortall: Could it be the case that other people have met?

Ms Anne Marie McMahon

It could be.

Deputy Róisín Shortall

Could it be the case that other personnel or legal people have met the Department?

Ms Kate Mulkerrins

I am confident that a meeting did not happen because I am the head of legal.

Deputy Róisín Shortall

Has An Garda Síochána engaged with anybody else on this legislation? No. What about in terms of the Office of the Attorney General?

Ms Kate Mulkerrins

I believe not. That would not be the line. The Department would consult with the Attorney General and based on that advice they would consult with us, which is, I think, the process the Superintendent Michael McNamara has described. It would not be normal for us to engage directly with the Office of the Attorney General on a Department issue, including our own.

Deputy Róisín Shortall

Having clearly enforceable legislation is a fairly fundamental aspect of any legislation.

Ms Kate Mulkerrins

Yes. That engagement, which Superintendent Michael McNamara spoke of, was our opportunity to put to the Department rather than any involvement with this committee.

Deputy Róisín Shortall

Did the superintendent request an engagement or was it the Department?

Dr. Michael McNamara

The Department made the request.

Deputy Róisín Shortall

Reference has been made to the parameters of the safe access zones and signage. Is that really a feasible proposal given the extent of the facilities that are intended to be used? There are hundreds at the moment. We are still very conscious of the fact that only about half of the maternity hospitals, for example, provide services but we have been told that they will albeit in the future and one in eight GP surgeries provides services. It is expected that the number of facilities will expand very substantially so is it feasible to talk about having signage outside all of these facilities?

Ms Anne Marie McMahon

In the context of the bigger centres and the hospitals, which are, I understand, the main areas where services are provided at this juncture, these are invariably big sprawling buildings with large grounds, car parks and all sorts of other infrastructure.

Deputy Róisín Shortall

That is why I have asked whether it is feasible to have signage.

Ms Anne Marie McMahon

From the perspective of those locations, yes, it is practical to have signage. Let us consider this matter from a practical perspective. Somebody has to, potentially, park their car or get off public transport or whatever and walk through an area en route to the entrance to the facility. From a practical perspective, it would be important that that individual knows where the safe area is and, equally, if there are protesters, they need to know as well where it is possible to protest and not, and the manner of that protest.

Deputy Róisín Shortall

The proposal is that it is 100 m from the curtilage of a hospital, if that is the distance that is decided, and it seems to be the likely one. This would seem to be a very extensive area.

Ms Kate Mulkerrins

I draw the attention of the Deputy to the defence I referred to in head 4(8), where it is a defence in the proceedings for the defendant to prove that he or she honestly believed at the time of the alleged commission of the offence he or she was not in a safe zone. That subsection is going to be a significant difficulty if there is no delineation of a safe zone in a complex urban environment. The gardaí attending, and there have been multiple ranks and experiences of this, equally have to be able to direct people on the morning to remove themselves from that safe zone without proper delineation of where that is. If it is a single site hospital with a large open area, that may be one thing, but much of our infrastructure overlaps other buildings and these are multipurpose sites. We know that. I live right beside St. James’s Hospital in Dublin, where Luas lines go through it, as do bus corridors.

Deputy Róisín Shortall

That is why I am saying it is difficult to imagine how signage could work in the same sentence.

Ms Kate Mulkerrins

If it is difficult to provide signage, it is almost impossible to have gardaí accurately direct a person out of this space or for defendants not to have that defence.

Deputy Róisín Shortall

Getting back to that point Ms Mulkerrins made about a register, it was suggested that consideration might be given to whether there should be a register of service providers so that the number of safe access zones could be reduced and-or more resources made available for the policing of these zones. A few moments ago Deputy Commissioner McMahon made the comment that most services would be provided in hospitals. That is not actually the case. Most services are and will continue to be provided in GP surgeries.

Ms Anne Marie McMahon

I stand to be corrected in respect of these locations but my understanding was the hospitals were the main service providers. However, I take the Deputy’s point in that regard. From the perspective of An Garda Síochána, the purpose of the identification of locations is to allow us to know what we are facing in any particular policing area so that we can anticipate and plan for-----

Deputy Róisín Shortall

I appreciate the challenges the deputy commissioner has identified, but it is just the solutions I am wondering about. Moving on to the question of the issuing of a warning, which was raised by Deputy Cullinane, is it open to An Garda to record a warning on the PULSE system?

Ms Anne Marie McMahon

I will have to answer that in a sightly nuanced way. This can only be recorded by way of a narrative. We do not have a drop-down menu, so this would be something new for us. If I take the analogy of section 8 of the public order Act, it is the offence which happens when somebody does not comply with the warning. That is what is recorded on the PULSE system - the breach of section 8.

Deputy Róisín Shortall

In a scenario where a person is protesting in Cork, the person receives a warning from the local gardaí there, and a couple of weeks later the person is protesting in Dublin, how would a member of An Garda in Dublin be aware a warning had been given in Cork?

Ms Anne Marie McMahon

They may not be aware. You have to look at the totality of the of the circumstances. If the warning is given and the individual moves away, then he or she is not committing an offence. We would have no reason, therefore, to retain a record of somebody complying. That is what happens currently under the public order Act.

Deputy Róisín Shortall

It is proposed in this legislation that, in effect, for an offence to be committed under head 4(7) of the proposed legislation, an individual acting in breach of the provisions of the proposed legislation must have been previously issued with a warning pursuant to head 4(5). That is a requirement of the proposed legislation, that for an offence to be committed, the person must have previously had a warning.

Ms Kate Mulkerrins

Superintendent McNamara will also address this, but from a practical and legal perspective, that is identical to section 8 of the public order Act, which is that it is an inherent quality of the offence that a person has failed upon the warning so he or she must have had the warning to have completed the offence. The difficulty-----

Deputy Róisín Shortall

For a member of An Garda to prosecute a subsequent breach of a zone, would that member not need to know there had been a previous warning?

Ms Kate Mulkerrins

They would need to know, but the difficultly would be, and we spoke about this earlier, that where a person moves to a new venue and new circumstances of a protest, that person will have a defence subsequently because the warning o the person will have been for safe zone A, for example, in hospital 1, whereas hospital 2, in my view, will have to reissue that warning for that to be specific to that hospital. I am aware the legislation as drafted seeks to give an omnibus warning in any location.

Analogous to the Covid-19 regulations, there was no recording of any of the three Es. When we stopped a person and asked what that person's reasonable excuse was for being outside of 3 km, if the person said they very much wanted to have a burger in a different shop, we said they had to turn around and leave-----

Deputy Róisín Shortall

Okay, but in the context of a situation where there are hundreds of facilities where services are being provided, it is not feasible in the case of each and every GP surgery that you would have had to have had a warning at surgery A previously if you subsequently protest at surgery A, because protesters will then just move around and it becomes completely unworkable.

Ms Kate Mulkerrins

That is going to be the challenge, which will be on the defence available and a reasonable belief that you have not perpetrated the same offence in hospital B because of the issue about the warning being location-specific. I know the Bill seeks to give this omnibus provision. We are looking at the frailties. The ICT capacity is a separate issue but the difficulty is that if a person desists and moves away, he or she has not committed an offence. We would be recording intelligence on PULSE, which is not a vehicle for recording intelligence, but if it is going to be used in-----

Deputy Róisín Shortall

Ms Mulkerrins is raising fundamental questions-----

Ms Kate Mulkerrins

It is fundamental.

Deputy Róisín Shortall

------about the working of the legislation.

Ms Kate Mulkerrins

We believe it requires advice and Superintendent McNamara raised this point at that meeting with the Department.

Dr. Michael McNamara

This has been raised with the Department and it has identified this issue itself, following consultation with the Attorney General. The other issue with the caution and it being applicable to other parts of the country is that if it has been dealt with in the first instance, it is arguable that caution is spent. We would therefore not be in a position to act upon it in a second location, even if it was the second time at the same location.

Deputy Róisín Shortall

Given we are all agreed on the objective of preventing intimidation and harassment of people accessing health services, has An Garda a solution to that problem?

Dr. Michael McNamara

I would suggest the current situation in respect of section 8 of the public order Act has served us very well since 1994. Perhaps, with some minor adjustments to it, it could be workable. Along with that, it would provide us with some consistency in that we are operating the same provision. To give an example, when offences come on stream, as they do yearly, we do not receive a new power of arrest.

Deputy Róisín Shortall

Sorry to interrupt, but this is my final question. There seems to be some hesitancy on the part of An Garda Síochána to use that section of the public order Act where protests are occurring.

There are protests. We know there have been difficulties in addressing the protests that take place fairly regularly.

Dr. Michael McNamara

I would suggest that we use our primary legislation when we are faced with these challenging situations. That fits into our graduated approach because it allows us to engage with the individuals and the protesters and rather than make arrests, we give people a chance in terms of educating them.

Deputy Róisín Shortall

I suggest that many women accessing termination services are not very satisfied with the level of policing at the moment, which is the reason there has been such a demand for the safe access zones. It may be a combination of the existing law and the demarcation of zones. Dr. McNamara raises fundamental questions and I thank him for doing that.

Deputy Bernard J. Durkan

I welcome the witnesses. I should point out that I am not an aficionado of zones. The original intention was that the particular facility and services would be available to women in accordance with the constitutional amendment and the Act, as published, before the amendment. To me, the identification of the location of various services would make it very easy for people who want to protest to identify where the services are taking place, and this could have a very serious effect and intimidate women who might have a delicate health issue at that particular time. I do not know how that is going to work, for example, where there are blood pressure issues leading to possible sepsis, which we have all dealt with in our constituencies over the years. In terms of any interference with the right of the patient to access services, the onus falls on those who are authorised to provide the service in the first instance and those who enable the service to be freely available in accordance with the law. Not so long ago, we had a long discussion about the services available under the law in another context. The services are available under the law, and they might be made unworkable by various people saying they are not going to do that.

I heard the master of the Rotunda on the radio recently indicating that the hospital does not have a problem regarding the availability of services and that there are plenty of people ready and available to provide the services that are required. My question is about the identification of the locations where State services provided by law are interfered with by people who do not agree with it. That is fine in theory but, in practice, it can have serious consequences. In some of the cases I have dealt with that have made national headlines, it was a question of an instant response or nothing. If it was not possible to respond to the patients requirements in the fastest possible time, then the whole question of the availability of the service was void. Could the witnesses comment first on the extent to which they know of the number of locations where possible intimidation happens? I realise that protest and freedom of speech are allowed, but sometimes the protests go beyond that and dispossess the other person of their entitlements to achieve what they can achieve under the law. That is not freedom of speech, it is intimidation. It is overturning the law in a serious way.

The first question is the number and location of instances where the witnesses are aware there was intimidation. Will An Garda Síochána be in a position to adequately police these locations when they are identified in a more public way?

Ms Anne Marie McMahon

As I have said already, there are a number of locations where we have responded, where we are aware that protests took place but I do not have the specific numbers to share with the committee today.

If this Bill is enacted, it will be the law of the land. As the police service for the State, it is our job then to deal with the legislation in a fair and proportionate way. That is what we will do, as we did during the Covid regulations. Reference has been made to the complex situation in that regard in terms of the competing rights. Our approach to that was a very humane and practical one using the four Es and working our way through the various steps. It is absolutely our intention to follow a similar type of approach in this regard. We can move through the four Es pretty quickly, but it is important that everybody knows where they stand in the context of either being facilitated through the safe zone or if there are breaches of that, those who are breaching it equally know that is the case and we will follow through in line with the legislation.

Deputy Bernard J. Durkan

Inevitably, it may well happen that in cases where patients are prevented from gaining access to the service, they could find themselves in a life-threatening situation, as a result of a delay in the delivery of the service. In such a situation, I will follow on from Deputy Shortall's questions about policing in a big area, 100 m around a facility already 100 m wide.

I accept in the first instance that GPs are in particular locations, but they are not the only people involved. Pre-12 week terminations are something that was readily available previously, not under the law, but through the Internet. The intention was to bring medical supervision into that kind of situation to ensure that people who use the service were not doing so at a risk to themselves, that they were using it appropriately and that the service was available. In these circumstances, my question goes back again to the possibility of identifying the precise locations where the services are available. Under the law, a late termination is a life-and-death situation. How can patients be assured that they can avail of the service without being ridiculed, cat-called and identified in an embarrassing way? The question is whether the witnesses are certain that An Garda Síochána can provide the kind of protection along the lines I suggest.

Ms Anne Marie McMahon

As already stated, our job is to give effect to the legislation. In that context, yes we can, but we must be conscious of the competing rights we are dealing with here. The challenging area for An Garda Síochána, or any police service, is to try to balance the proportionality and make sure that there are no breaches of the law. If there are, that is where we step in and take appropriate action.

Deputy Bernard J. Durkan

I thank Ms McMahon for the reply. As I said at the outset, I am not an aficionado of this particular type of identification. If the legislation is to work in the way it was intended, then the services should be available through the various channels already identified, as appropriate. We must be able to deal with situations where, in certain circumstances, women may find themselves unable to access a service by one means or another.

The whole question of access to the service is paramount. In the event of an impedance of their right to access the service, then the State is responsible. That relates to my general question on identifying the locations. Hospitals will readily carry out the service, will readily admit they carry it out and are entitled to carry it out. We learned that lesson from the situation that we dealt with previously where women lost their lives as a result of the law not being sufficiently rigorous to ensure they were able to avail of the service.

Another issue is now emerging, which is the possible fear by patients of being seen going to an area that is specifically responsible for providing a particular aspect of services that could or should be available through practitioners in all hospitals. The danger then arises of driving this service underground in every sense of the word. That would be a dangerous development in the whole thing.

I do not want to delay the meeting. I will simply finish off by saying I am raising these questions as one of the three people present who were on the original committee. It was quite clear what we intended to do at the time and it was quite clear what had to be done at the time. As a result of that we are now looking at how the system has bedded down, whether it is working satisfactorily and if not, why it is not working satisfactorily. The witnesses cannot answer those questions any more than we can at this stage but the medical profession can answer those questions adequately. The medical profession must answer those questions because if there is any let-up on what was intended in the original legislation as passed following a referendum, then we would all have a problem.

Deputy Neasa Hourigan

In Ms McMahon's first contribution, did she say she did not have the statistics for attendance at the kinds of protests we are discussing today?

Ms Anne Marie McMahon

What the Deputy said is right. I do not have the statistics, but-----

Deputy Neasa Hourigan

Why not?

Ms Anne Marie McMahon

There is an issue with privacy associated with some of what we are discussing here. There are a small number-----

Deputy Neasa Hourigan

It should not be an issue for the Garda. Ms McMahon was asked to appear before the Joint Committee on Health to discuss legislation relating to a very particular type of protest. I presume it is possible to know how many times the Garda has been called to a protest without necessarily giving a location. I actually do not see what the problem would be with giving a location. Does Ms McMahon have the data?

Ms Anne Marie McMahon

No, I do not have the data.

Deputy Neasa Hourigan

Is Ms McMahon saying she does not have it today or that it has never been collated.

Ms Anne Marie McMahon

I do not have it today.

Deputy Neasa Hourigan

Is it on a system somewhere? Is the Garda collecting data specific to this type of protest?

Ms Anne Marie McMahon

Yes, where we have responded-----

Deputy Neasa Hourigan

Not under the Public Order Act. Is there a data set showing protests outside healthcare facilities?

Ms Anne Marie McMahon

In terms of the categorisation, I am not 100% sure. Certainly, where we have responded to protests-----

Deputy Neasa Hourigan

We have just lived through the Covid pandemic. I take Ms McMahon's point and I do not think Covid is a very good analogy for the work we are doing today. I sat in the conference centre and witnessed protests with about 2,000 people. However, in Limerick and other places protests outside hospitals involve 15 to 25 people. I am not sure it is analogous. Is the Garda collecting and collating data on protests outside healthcare facilities when it comes to reproductive health?

Ms Anne Marie McMahon

Where we are called to respond where there are protests, it is recorded.

Deputy Neasa Hourigan

Is it recorded as a general protest or as a protest relating to healthcare?

Ms Anne Marie McMahon

It is record as a general protest.

Deputy Neasa Hourigan

Therefore, there is no way for me to look at that data set and differentiate it from a protest related to Covid, for example.

Ms Anne Marie McMahon

Not immediately. It may be possible through word searches or-----

Deputy Neasa Hourigan

The witnesses have stated here today that they believe that this legislation is not required and we are well served by the current legislation. However, they have provided no data for that.

Ms Anne Marie McMahon

I wish to make clear that our submission today relates to particular aspects that would enhance the current construct of the Bill.

Deputy Neasa Hourigan

A short while ago, Mr. McNamara said that we are well served and that the current Criminal Justice (Public Order) Act is sufficient.

Ms Anne Marie McMahon

The principles of the Criminal Justice (Public Order) Act can be applied to this.

Deputy Neasa Hourigan

If Ms McMahon is making that thesis to us, I would expect to see some data supporting it. Would that be fair? I have attended many policing forums at which the first question residents ask is, "What's is our data? How many burglaries have there been? How many assaults have there been?" That is the first thing they ask the gardaí.

Ms Kate Mulkerrins

I might clarify on two legal points. There is no intention in this submission to suggest that we are saying that the safe-zone legislation is not required. First, it is not a function of An Garda Síochána to tell the State what legislation is required. We are receivers of legislation. Second-----

Deputy Neasa Hourigan

In the context of saying the rights of individuals-----

Ms Kate Mulkerrins

Perhaps I might just finish. From a policing perspective, we submitted that the warning system as envisaged for the safe zones may be better served by a replication of the Criminal Justice (Public Order) Act warning. It is not suggesting that there is not a need in any context. The second example was whether a separate offence for intimidation was needed or whether section 10, as amended, which now includes, as the Deputy is aware because of where we are, a range of offences, including intimidation. It was our attempt. If we have represented it as anything other than an enhancement of the enforceability of this legislation, then I apologise; that is an error.

Deputy Neasa Hourigan

Let us get back to the data. Is Ms McMahon saying the Garda has no data about its ability to police protests around healthcare facilities?

Ms Anne Marie McMahon

There is general data in terms of the protests.

Deputy Neasa Hourigan

But not healthcare protests. For example, we are all here in Leinster House. There have been protests by all sorts of civil society groups on the cost of living, Covid and everything else. At the moment the data relate to general public order and not to healthcare protections. Is that correct?

Ms Anne Marie McMahon

The categorisation would be as protests. The descriptor, the narrative, would reference the location where the protest took place and the nature of it.

Deputy Neasa Hourigan

We have talked today about the difficulty in an urban area. For example, around the corner from the Rotunda is the Hugh Lane Gallery which is a very popular place for people to gather for a protest. Identifying the location might not imply what the protest was about. It is quite likely, for example, that someone who is anti-choice might be protesting in the location of the Rotunda and not particularly be focusing on the Rotunda at all. That information would not necessarily be available through the data.

Ms Anne Marie McMahon

In terms of the identification of what any protest is about, normally there are banners or some kind of identification of-----

Deputy Neasa Hourigan

If, for example, there were white coffins outside a maternity hospital, PULSE would have that.

That is a very long pause.

Ms Anne Marie McMahon

I do not want to wrong-foot the committee by saying that it would be on PULSE.

Deputy Neasa Hourigan

The presence of white coffins might not be recorded on PULSE.

Ms Anne Marie McMahon

What would be on PULSE is that there was a pro-life protest. The specific detail of what that might look like may not be.

Deputy Neasa Hourigan

Ms McMahon can see this from the committee's point of view. I am always harping on about the data and the actual collated information on which we can rely and trying to push people towards those. For the witnesses to come before the committee and say they are or could be well served by current law, with no data to back up that statement, is difficult to accept. Does Ms McMahon accept that I would have expected to see data today?

Ms Anne Marie McMahon

It is a reasonable question.

Deputy Neasa Hourigan

I turn to the issue of deciding the line. How do we do that with polling stations? They are a good analogy because they are in schools up and down the country and right at the heart of everybody's community. How are people told about the 50 m law with regard to polling stations?

Ms Anne Marie McMahon

Polling stations are a good analogy in one way but, in another way, they are not, really. There is acceptance and general knowledge of, adherence to and compliance with the 50 m law, so-----

Deputy Neasa Hourigan

How did we get to that point? Was it by educating the public that the law was in place?

Ms Anne Marie McMahon

Yes.

Deputy Neasa Hourigan

Is there any reason to believe that this legislation will be any different?

Ms Anne Marie McMahon

That goes to the whole point of what we are proposing in respect of our three Es approach. The first E is about educating.

Deputy Neasa Hourigan

I completely agree, but the point I am making is that, in some ways, polling stations are polling stations only once every three or four years and people would be less expected to understand the parameters in that regard, whereas healthcare facilities are here to stay and are, mostly, permanently open. Therefore, as for the expectation that the small number of people who participate in these protests would be aware of where the 100 m limit is, it is more realistic to expect that they would understand the law, if Ms McMahon is saying people understand the polling station law. Is that fair to say? The general public understands the 50 m limit around polling stations. Is that so?

Ms Anne Marie McMahon

Yes.

Deputy Neasa Hourigan

Therefore, the general public would be expected to understand this as well.

Ms Anne Marie McMahon

The general public would potentially be expected to understand it. As the Deputy has just said, however, it is a small number of people who-----

Deputy Neasa Hourigan

That would imply that they would be knowingly breaking the law.

Ms Anne Marie McMahon

Not necessarily. We cannot make those assumptions. We still have to apply the law. We cannot make any assumption as to what somebody does or does not know.

Deputy Neasa Hourigan

I know we do not have data for this, but do the witnesses have data for the number of people who have been issued a warning of non-compliance, been detained or been impacted in any way in respect of public order legislation since 2019, that is, since the introduction of reproductive rights?

Ms Anne Marie McMahon

I do not have those data.

Deputy Neasa Hourigan

That is because there have been no prosecutions, Ms McMahon said.

Ms Anne Marie McMahon

To the best of my knowledge, as I said, there have been no prosecutions.

Deputy Neasa Hourigan

I know I am way over time.

When it comes to giving a warning, my understanding of the 2020 legislation on intimidation and harassment is that it kind of relies on a catalogue or recording of multiple instances. That is coming down the line towards the Garda. It seems to me that what the witnesses are describing is such that there would have to be three engagements with an individual before any actual record of engagement. Am I right in thinking that? The witnesses are describing an approach involving educating, engaging, encouraging and enforcing, and I think one of the witnesses said gardaí do the three Es without recording. Is that correct?

Ms Kate Mulkerrins

That legislation was the analogy used. I know that the Deputy does not find it helpful in explaining that at no time during Covid did we record a warning when somebody was compliant. There was a great deal of concern on everyone's part as to whether or not that was the correct thing to do but, ultimately, the decision made was that if somebody was compliant with a direction to go home or to desist, a warning would not be recorded. This legislation envisages that we would have an omnibus warning, and we are pointing out the-----

Deputy Neasa Hourigan

Sorry, but, to be clear on the legal point, there is legislation on intimidation and harassment coming down the line. The basis of it seems to be the creation of a catalogue of repeated offences, so this is happening in other legislation. Has An Garda Síochána, as implementers of the law, done a piece of work on how it will deal with that? Whatever about this legislation, it seems like that is coming down the line and there will be a kind of falling between the cracks if An Garda Síochána has four engagements with somebody in that it is only at the very last moment that a garda records a breach in some way. I am not sure that that would be compliant with intimidation and harassment law either.

Ms Kate Mulkerrins

In the event that there is evidence of intimidation on the first engagement, we need a course of conduct. That is our existing law. A single isolated incident of conduct in and of itself would not amount to intimidation because the defence of having meant no harm or having had no subjective appreciation is left open. We require a repeat of that conduct in order to rebut the defence-----

Deputy Neasa Hourigan

I completely agree with Ms Mulkerrins. That is what I am saying. It is the repeated nature of it that-----

Ms Kate Mulkerrins

That is the infirmity-----

Deputy Neasa Hourigan

I am sorry, Chair. I am out of time. I do not mean to cut across Ms Mulkerrins, but if the Garda does end up collating some kind of information or data on this, it would be really helpful for the committee to receive it.

Deputy Bríd Smith

I thank Ms McMahon for her presentation. I totally agree with Deputy Hourigan on the analogy with Covid. I do not like it either and I do not think it serves us well here, not because of the Es, because what gardaí do well is educate, enforce and so on, but because the Covid legislation was rigid emergency legislation brought in to try to contain a pandemic and on an understandably temporary basis. I therefore do not like the comparison with it. I sat on the Committee on the Eighth Amendment of the Constitution, which tried to design the legislation on termination of pregnancy, and we discussed this issue a lot. What we are trying to achieve here is that women and pregnant people can access their legal right to advice, termination of pregnancy or any sort of healthcare in that regard without being bullied, harassed, intimidated, insulted, told they are murderers or being shown horrible images that have to do with their bodies or the potential of their bodies to reproduce. That is what we are trying to deal with here. Safe access zones are not enough. We need to change the whole societal approach to the issue of women's healthcare.

I have a couple of questions for the witnesses. The first just struck me when I was coming in here today. I am not a member of this committee, but is it unusual or unique for gardaí to come before a health committee to talk about legislation on health? I know they appear before the justice committee regularly, but what about dealing with the health committee?

Ms Anne Marie McMahon

I certainly have not been here before. There was probably some extensive engagement on the Covid regulations here on the part of our executive director, legal, but it probably is unusual.

Ms Kate Mulkerrins

Until Covid, I had never in my career engaged on health legislation or with health committees.

Deputy Bríd Smith

It is just an observation. I just found it unusual.

I will focus on the comparison with polling stations. I have been warned by gardaí many times about activity near polling stations, particularly in the early days of the implementation of the legislation. Contrary to what Ms McMahon said, there was not a general understanding that one could not canvass or poster within 50 m of a polling station. As a political activist, I have been warned about that quite a few times, as have many of my supporters. Gardaí are on the ball and really quick to tell you that you are not to distribute leaflets, have discussions or put up posters within the 50 m. They are very proactive about it. The idea that signage would be needed around St. James's Hospital, which I live near, around the Coombe Hospital, where I used to work, or around a doctor's clinic is just nonsense. We need to get to a point at which people understand that they are not allowed to intimidate women or pregnant people, carry those signs, shout those remarks at them or say the rosary within 100 m of a healthcare giver. I assume that when the witnesses repeatedly talk about competing rights, they are talking about the right to protest versus the right to access healthcare. To that end, I do not know whether or not gardaí can change this on the PULSE system, but calling anti-abortion protests pro-life protests is insulting. I am pro-life. I am for the right of women to live in the manner they choose. Calling such protests pro-life in an official way is a practice that should be changed.

They need to be called something else but not something that intimates that the rest of us are anti-life. They should be called anti-choice protests or whatever but they should not be called pro-life in an official way or be recorded in that manner. However, I do think we-----

Ms Anne Marie McMahon

To be clear, I used that phrase but I honestly cannot say definitively that is what they are recorded as. It is a "for instance" scenario. We might take some other kind of protest and go to the other end of the spectrum altogether with, for example, a water protest or something. Therefore, it would be the title of the protest as opposed to the detail of it. I did not mean to offend anybody by using that phraseology.

Deputy Bríd Smith

To correct the record, I am not taking offence in that manner. I would like the PULSE system to be changed to call it something other than a pro-life protest because I do not think it is fair to us. I want to talk about the Criminal Justice (Public Order) Act. I do not know from her submission whether Ms McMahon thinks An Garda Síochána needs more powers to search and go into people's homes or whatever. I am not clear about that. Perhaps she could elaborate. Under the Criminal Justice (Public Order) Act, however, does Ms McMahon think it would be possible to bring in legislation for safe access zones that amends the public order Act to include the 100 m limit outside healthcare facilities? That is probably a question for Ms Mulkerrins as the legal adviser. Is it possible to bring that in an amendment to the Criminal Justice (Public Order) Act to include the 100 m limit outside providers of abortion care at the same time as we bring in this legislation?

Ms Kate Mulkerrins

I am afraid I am one of those people who would need a little bit of time to distil that thought. The reason we think the public order model has worked and why it is suitable in this regard is that we have a tried and tested model. The difficulty with a new model as we see it are the types of conduct, of which the Deputy gave a really good overview, which include behaviours that in many circumstances, although not these particular ones, would not be viewed as intimidatory.

I completely accept that rows of people praying in front of a woman may impede her in her journey towards safe, legal access. That a person has a constitutional entitlement not to be intimidated would not necessarily fall under that public order Act. The nature of the behaviour would change the definition of what public order is, which is what this Act is doing in a particular zone that will be defensible, whereas making that general rule would in my view be too enlarged. Well, it may or may not. In the whole State, it would be difficult to suggest that people praying in proximity to someone outside a particular zone could be viewed as intimidatory. It might not be viewed as such by particular people.

Superintendent McNamara may wish to come in as he has actual policing experience. I am not a member of the police service. I am Garda staff employed for legal advice. This is about trying to bring the best operational experience together to inform this committee. The Deputy is absolutely right. This is an unusual juxtaposition for the Garda to find itself in, apart from the Health Act 1947, which no criminal lawyer ever thought he or she would know pre-Covid. Dr. McNamara may wish to expand on this from a policing perspective.

Dr. Michael McNamara

To clarify, this goes back to my earlier point about section 8 of the Criminal Justice (Public Order) Act serving as well. It is very important to understand that. It was not the public order Act in its totality. It was just regarding section 8, which outlines our authority to request people to desist from certain behaviour and request them to leave a situation. My point in that regard was to have some consistency . It would make it easier from a practical point of view if we are not dealing with two pieces of legislation for essentially doing the same thing. The Criminal Justice (Public Order) Act could possibly be amended to deal with some of the prohibited behaviour. We could then have one provision to deal with requesting people to leave a particular vicinity. That is the point I was trying to make.

That goes back then to the whole definition of the zones and the curtilage because everything is triggered on the clarity of the zones. Curtilage is a very loose term. There is no clarity in law as to what curtilage actually means and how far it is from the property. Then, if we put 100 m on top of that, where is the outside line? That is what will trigger us in terms of exercising that power to request or give a warning. All of that is linked. Along with that, there is a definition of a public place within the new Bill. It may be helpful for consistency purposes if consideration is given to aligning that with a definition of a public place under the Criminal Justice (Public Order) Act. Therefore, we are again dealing with consistency. It makes it that bit easier from an implementation and practical point of view.

Deputy Bríd Smith

Okay, I will come back to Dr. McNamara on two points and then I will stop. My point with regard to the curtilage is that members of the Garda do not have a problem. The ordinary garda on the beat does not have a problem about the curtilage around a polling station. They are immediately on top of people who go over the 50 m limit. Members of the Garda understand what the curtilage is in that instance and do not have a problem identifying it. Polling stations can also be vastly different types of buildings. A community centre could have four entrances and big parking spaces around it with a polling station inside. A polling station could be in an old Catholic school with railings that go on forever. They can be very different. They do not have a problem understanding. I really do not understand why this business about the 100 m from the curtilage has become such a big issue. It should be clear that a person cannot go within 100 m of where that service is being provided.

Dr. Michael McNamara

There is a slight distinction between the Electoral Acts and what is proposed here. There is an option. It is either 100 m from the curtilage or 100 m from the entrance. As I said, there is an option there-----

Deputy Bríd Smith

What does the Electoral Act say? Is it 50 m?

Dr. Michael McNamara

It is actually 100 m. Section 147 of the Electoral Act 1992 states that it is "within 100 metres of such [a] station." It goes on to state that activities should not include doing things "for the purpose of promoting the interest of a political party." It also mentions the curtilage of the station and the entrance. The Deputy might bear with me for one moment while I find the text.

Chairman

The Deputy has been breaking the law for a long time, therefore. I thought she understood this law.

Deputy Bríd Smith

Somebody said 50 m.

Chairman

It was Deputy Durkan. He has been getting away with murder for years.

Deputy Bríd Smith

I had no idea; I just do what the gardaí tell me.

Dr. Michael McNamara

I refer to section 147(3), which states that it "shall be measured from any entrance to the polling station or to the curtilage thereof". My understanding from my meeting with the Department of Justice on Monday is that it is looking at this now with a view to changing it to the exit point or entrance point to address the uncertainty around what the curtilage actually means.

Deputy Bríd Smith

I want to tease this out. At the meeting Dr. McNamara had with the Department, did he suggest or did the Department suggest that we look at the Electoral Act and compare it to the polling stations?

Dr. Michael McNamara

I do not recall whether that was mentioned.

Deputy Bríd Smith

It might be useful for us to suggest that to the Department.

Dr. Michael McNamara

I certainly raised that point anyway. I am not so sure whether I mentioned the Electoral Acts, to be honest. There was a discussion around the curtilage and distance and the practical concerns from a policing perspective. That is being looked at at the moment in terms of measuring the distance from the exit point or entrance point.

Deputy Bríd Smith

I forget my second question so I will stop.

Chairman

Senator Hoey will speak next. Deputy Bríd Smith can come back in at the end if she thinks of the question.

Senator Annie Hoey

She can whisper it in my ear. I thank the witnesses very much for coming in and giving their perspectives on this. It would not be fair to say they think this legislation is unworkable because they obviously put in suggestions as to how it could be made workable. There is not an enormous amount of safe access legislation globally. Can the witnesses think of an example of where has been nailed and works and where someone figured out this, that and the other?

Are they aware of any examples globally of colleagues who have done this right and whose example, perhaps with some tweaks, could be made workable here?

Ms Anne Marie McMahon

Our desktop research shows this is quite a contentious issue right around the world. All committee members will be aware of that. Our observations are about trying to bring to bear a practical perspective in the context of what would help An Garda Síochána to enforce this legislation. That practical perspective is the position from which we are coming. As I said, our job is to enforce the law of the land, whatever that is. We are just trying to offer some insights in the context of what would make it more workable and more easily enforceable. That is our position, no more and no less.

Senator Annie Hoey

Perhaps our system will become the gold standard and other countries will look to us to see how to make this work.

Head 4(3) refers to the recording and photographing of a person using these services. The witnesses have suggested that the eventual Bill should include people who engaging in such activities outside the safe zones. How would that be enforced and managed? I want to tease this out. We have had major conversations about the difficulty of making this work, even within the zones. How might it work outside them? People can arguably take pictures around the space. Will the witnesses explain that to me? I am really interested to know how it might work.

Ms Anne Marie McMahon

We see this as a potential area that needs to be catered for in some way. There is a practical reality to contend with, given the availability of long-range lenses and technology being such as it is. We reference in our submission the absence of the power of seizure, etc. In a situation where we become aware somebody is either recording or taking photographs from a distance, beyond the 100 m areas, we would like to be enabled to seize that material as evidence and investigate it thoroughly in line with legislation. That is the reason we raised this issue. There is a practicality concern relating to our not being able to seize whatever material there is.

Senator Annie Hoey

Will Ms McMahon confirm she wants the Garda to have seizure powers to be able to enforce the legislation?

Ms Anne Marie McMahon

Yes, it would be a key part of the investigative machinery. Once we have the intelligence, report or whatever, we then go and interact with the individual. Whatever is the product of the recording would become evidence in any subsequent court case, prosecution or submission of file to the Director of Public Prosecutions for consideration.

Ms Kate Mulkerrins

As we spoke about earlier, what is needed is a continuum of proofs of conduct, beyond the warning that applies within the zone, that the conduct is intimidatory in nature or where a reasonable person looking at the conduct would say the purpose of the filming or photography, potentially after other actions as well, is to chill the individual seeking to access lawful services. As the Senator said, the power of seizure allows that evidence to be taken. From a personal viewpoint, in addition to the question of evidence being lost, it has the most chilling effect if such material is then uploaded to social media and other platforms. The comfort, for want of a better word, afforded by the gathering of that evidential material is of great significance and is balanced and proportionate in respect of the rights of the individuals concerned. Moreover, much of this activity does not happen in a public place but may be filmed from a public place. Again, we run into complexities about whether there is a right to privacy. In the intimidatory context we are discussing, the Bill can introduce that further protection of privacy.

Senator Annie Hoey

Ms Mulkerrins is absolutely right that the chilling effect of such material appearing online is huge. As I said, we do not necessarily see the same swath of stuff online that may be uploaded in the US, for example, but that does not mean it cannot happen here. We have all seen the footage online of escorts and all sorts of things happening, with people having to help women into facilities and so on. That has a chilling effect. The witnesses have made a really helpful observation because it would not have occurred to me to consider what activity may be taking place beyond the 50 m or 100 m and how we deal with that. It is helpful even for my own thinking. It just did not occur to me to think about how to deal with activity outside the zones.

I wonder whether there is a flip side. I see pictures online of people protesting outside places. Would this work the other way in that it would apply also to people recording those doing the protesting or is it the case that because the proposed legislation deals specifically with people who are accessing services it would apply only to them? Does that make sense?

Ms Kate Mulkerrins

It makes complete sense. I do not see that applicability because the proposed legislation is not crafting a general invasion of privacy provision, which would, as the Senator says, have a pro rata effect on those protesting.

Senator Annie Hoey

That is really helpful.

There are concerns about warnings being given and how they might be carried forward. The witnesses mentioned the possibility of a fresh warning in respect of each safe access zone possibly being more effective from a policing perspective, if I have interpreted correctly what was said. Is there an example of any other place in law where there is such a provision or would this be a unique approach, whereby warnings are applicable just to one location and would not carry over if a person engages in the same activity elsewhere? My understanding of the law is that if one is caught for doing something in one place, the warning or whatever it is carries across the country. A person cannot say, for example, that he or she was caught for something in Cork but there is a fresh slate if he or she does the same thing in Dublin.

Ms Anne Marie McMahon

We have continuously referenced the Criminal Justice (Public Order Act), particularly section 8, where a similarity exists with the provision we are discussing. If somebody is behaving in a particular way and is asked to desist, he or she is not committing an offence if he or she moves on. If he or she does not move on and continues with the behaviour, he or she is committing an offence. That is the analogy or similarity in the context of the general scheme.

Ms Kate Mulkerrins

The difficulty is that if a person moves away to another location, a fresh warning will be required. Our concern is whether that reality needs to be reflected by way of provision for an omnibus warning of general applicability. It may be something that will not be needed with the passage of time. We all know ignorance of the law is no defence but the practical reality is that what is proposed is new and represents a very new approach for our jurisdiction. It may be that such an approach will carry more weight later, when the general acceptance and understanding of the populace is such that a prosecution can succeed, notwithstanding a fresh warning. I offer that suggestion speculatively. We are looking, by way of our suggestions, at trying to strengthen the early implementation of brand-new proposed legislation.

Senator Annie Hoey

Following on from that, there obviously will be a bedding-in period during which the Garda gets the hang of this and the public gets an understanding of what it all means. I presume there will be some latitude arising from the fact this is a new law being introduced. I am speculating here because I am not sure that is how it works. People might claim they are not aware of the law. I presume there might be some degree of latitude to facilitate people in adapting to the new law. How long do the witnesses expect that bedding-in period to take?

Ms Anne Marie McMahon

The best way I can answer that is to say the law of the land is the law of the land and that is it.

Senator Annie Hoey

Yes. I am not assuming that gardaí will just let people off with committing an offence under this proposed legislation.

Ms Anne Marie McMahon

Earlier in the session we discussed the adoption of the four E's approach to ensure people are made aware of the regulations. However, that does not mean it would take a lengthy period of time. We could move through the E's very quickly and there could be a very short exchange in terms of educating and moving on to enforcement, should the advice and the warning not be taken up. There will be very little latitude given and the four E's will prevail. That should remove any ambiguity that may exist in the context of a person claiming ignorance or not being aware of the law.

Senator Annie Hoey

Ms McMahon has outlined the four E's. We have talked about polling stations. I do not know at what point I became aware that certain behaviour is restricted. Like many others, I would like to be relatively close to a polling station on certain days. We just know how to behave and someone says it. This is a particularly heightened topic and there is a lot of media coverage on it. It seems very reasonable to me that if and when this legislation comes in, potentially with the tweaks that have been suggested by An Garda Síochána and other groups, it will be fairly reasonable to assume, unless people are living under a rock, that they will absorb the regulations around it relatively quickly. One cannot assume there will be intent or bad actors, but it would be reasonable enough to assume the regulations can be disseminated through the populace. We came through a fairly lively referendum not that long ago. It is still quite fresh in people's minds. It is reasonable assume that, with decent communication, people can pick up on what the law is relatively quickly if it is explained well. Certainly, from our perspective we want this to work. We want it to be explained well and we want to be clear. The last thing we want is for someone to break the law accidentally. Part of our responsibility is to work out how it is explained. We will have a job to do in that respect. I am sure all members get communication as to what, where, when and why we are doing something. We will be on the explaining end. I thank the witnesses and appreciate their responses.

Deputy Colm Burke

I thank the witnesses for their presentation and for dealing with all of the queries that have been put to them this morning. I want to go back over the demarcation issue. An Garda Síochána has a concern about it. Coming from a legal background, I also have a concern about it from the point of view of clearly defining where the line is if there are prosecutions. For example, if there is a 50 km/h speed limit going into a town, there is a sign up that indicates drivers cannot travel at above 50 km/h beyond that sign. What do the witnesses suggest in respect of demarcation to ensure there is absolute certainty on this?

Ms Anne Marie McMahon

I will refer to my colleagues momentarily. As I have said already, this goes to the nub of the issue of whether a person is breaching the regulations in the legislation as proposed. It is important for all parties concerned to know where that location is, where it begins and where it ends, and the behaviour that is not permissible in that space. Just thinking about it and working it through to a potential hearing in court will become very problematic in the context of not knowing and not being able to be definitive.

Deputy Colm Burke

Absolutely, I agree.

Ms Anne Marie McMahon

That is our concern around it. There are very few easy solutions to this because of the nature-----

Deputy Colm Burke

Has An Garda Síochána thought out a solution to it? I am looking at it from a defence solicitor's point of view. An argument could be made as to whether a person was 90 m or 100 m from the entrance. How can that be defined clearly? Who measures that? In the case the 50 km/h speed limit, it is clearly marked where the zone starts and finishes. I am wondering whether An Garda Síochána has put forward any proposals as regards how the line will be clearly defined.

Dr. Michael McNamara

We have not put forward any proposals yet. Signage would be a starting point. Looking at the hospital facilities at the moment may the easiest starting point. We fully understand this is probably the most challenging aspect.

Deputy Colm Burke

It is really challenging since it is very easy to say something is 100 m from a point. There will always be a sign indicating where the hospital is. Is it not very easy to design a sign that clearly indicates an area is within the precincts of the hospital and therefore people are not entitled to protest beyond that point? I can see huge problems for An Garda Síochána in prosecuting on this aspect unless a clear demarcation is put in place.

Dr. Michael McNamara

That is really what triggers being able to give a warning, as I said earlier. If we are not on solid ground, then the warning is flawed in the first place and everything falls. Certainty on whether people are present inside or outside what may be demarcated is very important to us and, in fairness, to everybody else involved.

Deputy Colm Burke

Have there been any discussions between the Department and An Garda Síochána on this issue? An Garda Síochána obviously has concerns about it. The last thing we need, in situations where An Garda Síochána feels there has been a clear breach of the regulations, is a long drawn out process to determine whether that is the case. Then we are in the whole area of judicial review etc. Is it not better that we get all of the boxes ticked as regards what the demarcation line is?

Dr. Michael McNamara

That matter is been raised with the Department. I raised it personally with the Department.

Deputy Colm Burke

Has the Department responded?

Dr. Michael McNamara

It has not, apart from stating it has identified the issue itself and it is being considered at the moment.

Deputy Colm Burke

Does Dr. McNamara believe that we, as a committee, should make sure we clearly outline our concerns in the report on this proposal?

Dr. Michael McNamara

Certainly, following this meeting we can take it up further again.

Deputy Colm Burke

I want to go back to an issue that was raised by Deputy Bríd Smith in respect of polling stations. I accept her point that everyone realises there is a clear rule in place. Over the past two or three general elections or local elections, I did not hear of a huge number of incidents where An Garda Síochána had to take action. I am not sure what the view of the witnesses is on that.

Ms Anne Marie McMahon

The Deputy is right there has not been a huge number of incidents. At almost every election, there may be a few occasions where An Garda Síochána has to intervene. We do that, usually to great effect. People take heed of what we are saying. It probably does not make national headlines.

Deputy Colm Burke

Moving on to the issue of private property, with particular reference to the dwelling of a medical practitioner, does An Garda Síochána have any concerns about safe protests outside a dwelling house in that respect? For example, a group may decide that because it cannot protest outside a hospital, it will protest outside the property of a medical practitioner working in a particular facility. Is An Garda Síochána satisfied there is sufficient legislation in place to deal with that kind of issue?

Ms Anne Marie McMahon

I thank the Deputy for raising that issue.

There have been occasions in the past 12 months where the homes of certain individuals, and elected representatives in particular, have been subject to protest, albeit in a different context. There is potential for such situations, but they are not provided for in the legislation and we confined our views and observations on the facilities and service provision as outlined.

Deputy Colm Burke

Does Ms McMahon believe it is an area that we should be examining?

Ms Anne Marie McMahon

It is not for us to tell the Legislature-----

Deputy Colm Burke

No. I am raising this matter because it is difficult for the Garda to intervene if it is uncomfortable about whether there is adequate legislation to deal with an issue. Would the Garda feel safer if there was appropriate legislation in place that gave the Garda a clear understanding of where the boundaries were when dealing with particular issues?

Ms Anne Marie McMahon

Yes. The Bill provides for 100 m. Where a situation involves the home of a medical practitioner, would the same 100 m zone apply, seeing as how the medical practitioner is not providing the service at his or her home? It is a different dynamic, but it is a potential situation.

Deputy Colm Burke

There is already extensive legislation in place, for example, the Criminal Justice (Public Order) Act 1994 and the Non-Fatal Offences against the Person Act 1997. If the Garda feels that it cannot use this Bill to deal with an issue, is Ms McMahon satisfied that the current legislation gives it the security to deal with difficult protests? The Garda has wide powers under the 1997 Act, as amended.

Ms Anne Marie McMahon

Yes.

Deputy Colm Burke

If there was a scenario where the Garda felt it was not able to use the new legislation, is Ms McMahon satisfied that the current legislation provides some security to deal with an issue?

Ms Anne Marie McMahon

Under section 10 of the 1997 Act, where behaviour is repeated and meets the criteria to be called "harassment", that option is available to us.

Deputy Colm Burke

I thank Ms McMahon.

Chairman

I wish to refer to a couple of the points raised by members. The example of a polling station was used, although I accept it was not the ideal analogy. Normally, the action taken comes as a result of a complaint. We are all familiar with the legislation or, rather, we are not familiar with it but we have a sense of it. My understanding is that the distance set out is 100 m from the entrance to the polling station - not necessarily its front door, but its gateway.

Under this proposed Bill, setting the curtilage or boundary of the safe zone is important. Any number of hospitals could be mentioned, but the example of St. James's was used. There are houses overlooking it. Would a banner hanging from someone's house be acceptable? There are also houses around St. Vincent's hospital. Would protests outside people's homes every night be acceptable? This issue poses significant problems.

The Garda's approach of engaging, educating, encouraging and enforcing is the right one compared with just telling people to go home, desist, disperse or whatever. The impression we were given when the departmental officials appeared before us was that the Garda was fully engaged in this process and on the journey with the Department, so I am shocked to learn that there has only been one meeting. A part of the challenge for the committee, in which respect I would like Dr. McNamara's view, is that we are looking at the heads of a Bill and not a Bill's contents. Whenever we ask about the proposed Bill, we are told that it is being work on. We are supposed to be engaging in pre-legislative scrutiny, but we are scrutinising heads rather than an actual Bill. Did the Garda face this challenge as well? If proposed legislation is before someone, it is much easier to see what will and will not work. In the Garda's engagement in the process, did the witnesses experience the same frustration?

It is unusual for the Garda to appear before the health committee, but enforcement is a key component, so it is a policing matter and there would be something wrong if we did not have the Garda appear before us. We have received approximately 11 submissions from various organisations. We will take those on board in our scrutiny.

Dr. Michael McNamara

I would not say that there has been any frustration. The scheme has been published, we have reviewed it and we are giving our views from an operational policing perspective on what will work best for everyone. Issues have been raised at this meeting that I have already discussed with the Department. The Department is now reviewing those.

Chairman

What about the curtilage or the boundary? Does the term "curtilage" need to be defined? Should we be using the word "boundary"?

Dr. Michael McNamara

There is no definition of "curtilage" in any textbook, law or case law, so it is a loose term, which adds to the uncertainty. This matter formed part of my discussions. My understanding is that it is being reviewed, the word may be removed and the 100 m zone will be from the entrance or exit points. While this would not provide absolute clarity, it would be a major help.

Chairman

It would not deal with the issue of a hospital's footprint either. No legislation is perfect. I imagine this issue will pose a difficulty. Similarly, the recording of individuals coming out of hospitals would be unacceptable in most people's view regardless of why the individuals were attending the hospitals. If recording is allowed to happen from outside the boundary, it will be something to worry about.

Will the witnesses walk us through the idea of a verbal warning? What would happen? A concern has been raised. Let us say that a garda gives a warning or notes that someone is within the distance set out under the legislation. The problem is that it is likely that that garda will not be there all day and will go off duty at the end of his or her shift. Another garda will come on duty and, on the back of a complaint, intervene again. This is where the train of evidence can disperse. If a warning is not written down, I imagine difficulties will arise. In that context, will the witnesses walk us through how this Bill would be implemented and what would and would not work?

Ms Anne Marie McMahon

In the context of the warning, I again give the analogy of section 8 of the public order Act. The warning would be part of a continuum in the context of asking someone to desist from a given behaviour. If the person does not do that, he or she is committing an offence, so his or her name and address are taken and the process moves on. It is not as though the warning would be separate to the incident. It would be an integral part, that is, the first step of the investigative process in the context of identifying a breach or not. If the individual moves away, he or she is not committing an offence under the public order Act as we understand it.

The question is whether that is the way we want to go. Is the warning some kind of offence or does it need to be recorded? Heretofore, we would not ordinarily record a warning. It is the resultant action of the warning that gives us the power to proceed to investigate the offence or, in the case of the public order Act, to make an arrest.

Chairman

Would the shift change be a difficulty in that regard?

Ms Anne Marie McMahon

Not necessarily, because all these steps would happen in close proximity. The warning would be given to leave the area and desist from whatever behaviour, and if that were not complied with, the next step would fall immediately into place. The challenge for us with this legislation, on the converse of that, is that if somebody leaves location A and moves to location B, he or she will have complied with the warning but shifted location in terms of breaching the law. Ms Mulkerrins might wish to come in there.

Ms Kate Mulkerrins

I might add that Deputy Hourigan correctly identified that the exception to that is in intimidation cases, where there has to evidence of repeated conduct to show there was no mistaken but honest belief that it was harmless conduct. This legislation, as I read it, is a sort of hybrid between the public order Act and section 10. It seeks to merge those two items because the series of events is intimidatory in a public order or protest situation. I absolutely see the legislative difficulty in drafting something, but we are trying simply to show the policing difficulty, on a practical level, of separating that warning from the then full offence.

The Chair made a good point about whether it can be recorded, but even if it can be recorded in a geographically dispersed place in real time, we will need access to mobility devices in a potentially fraught environment, although I have no right to talk about policing experience given I have none. It will involve relying on that previous warning in a defence where there is a stated defence of no reasonable belief that an offence was being committed in the new location, and then relying on the warning in the old location to be relevant to the new location.

Deputy Neasa Hourigan

I have some questions for clarity. Our guests met the Department of Health on Monday. Were representatives of the Department of Justice present at that meeting, and if not, have they met previously? If they have done so, will they outline when and how many times they met?

Our guests mentioned they had carried out desktop research on safe access zones in other jurisdictions. Will they have time to contact colleagues in other jurisdictions, particularly given the UK, which also has a common law system, is moving forward with this?

Ms Kate Mulkerrins

I do not know whether the Deputy heard that we fully acknowledge, having carried out desktop research, that we see very useful channels through Europol and other international policing partnerships to further that. Obviously, with the UK not now being part of that, that will be a separate-----

Deputy Neasa Hourigan

I apologise for interrupting, but I always think of the UK as having a similar legal system to our own because we kind of inherited it, and it is moving forward with this. Are we going to reach out to it or is that connection not there anymore? It is going through in Northern Ireland as well.

Ms Kate Mulkerrins

That connection is most certainly there, as is the connection with our colleagues in the PSNI. The connection is strong and vibrant. The Deputy is absolutely correct that the UK is a common law jurisdiction, but it has an entirely different constitutional model. I have practised in both jurisdictions, and that which looks like us and walks like us can be dangerously unlike us.

Deputy Neasa Hourigan

Fair enough. The written Constitution changes everything.

Ms Kate Mulkerrins

It is just a different constitutional model.

Deputy Neasa Hourigan

I thank Ms Mulkerrins. There was also the question about the Department of Justice.

Dr. Michael McNamara

The Department of Justice was not represented at the meeting. It was invited to be there but something else transpired and it was not able to attend. The Deputy asked also whether we have met its representatives and the answer is “No”. In July or August, I was informed this legislation was possibly coming up for discussion, but that was it. I have not met them to discuss it.

Deputy Neasa Hourigan

To be clear, this has been coming since 2020, when the programme for Government was signed. Therefore, the Department of Justice still not having sat down in respect of it with An Garda Síochána is concerning.

Dr. Michael McNamara

I would have to check with my predecessor on this.

Deputy Neasa Hourigan

Okay. Dr. McNamara might do that and let us know.

Dr. Michael McNamara

The same is true for any discussions that may have taken place with the Department of Health, to be fair. I will need to bottom that out.

Deputy Neasa Hourigan

Will Dr. McNamara let us know if other conversations have been missed during the course of this conversation?

Dr. Michael McNamara

Certainly.

Deputy Bernard J. Durkan

On the definition of "moving away" in the context of the public order Act and its applicability in this kind of situation, how far away will the offender have to move to avoid a breach of regulations insofar as a hospital or GP surgery is concerned? Where will he or she have to move to?

Ms Anne Marie McMahon

In the context of the public order Act, it is to desist from the particular behaviour and to move away, which means to move away completely from the location at which the alleged offence is occurring.

Deputy Bernard J. Durkan

Supposing the person moves down the road to a GP surgery away from a hospital, for example, or vice versa, would that count as moving away?

Ms Anne Marie McMahon

This is part of the challenge with this legislation. We are not in any way trying to sugarcoat this in the context of the challenges that will arise. If a person gets a warning at point A and moves a half a mile down the road to point B, there is the question of whether that is moving away and desisting. That is the challenge.

Ms Kate Mulkerrins

Close proximity, as members will be aware, is likely to give rise to the presumption of a chain, or single course, of action. Where that is severed is a matter of individual factual analysis. I can see an argument where a roving protest that seeks to move in close proximity is seen as a single act. I see potential for that. I expect Dr. McNamara would agree from a policing perspective, although I have to stop encroaching on policing practices.

Dr. Michael McNamara

Yes.

Chairman

As no other contributors are indicating, I will bring the meeting to a close. I thank the representatives of An Garda Síochána for their engagement on this. It was very helpful for the committee in our pre-legislative scrutiny.

This public session will conclude our public meetings on pre-legislative scrutiny of the Bill and the committee will give further consideration to the matter in private session, after which we will adjourn.

The joint committee adjoined at 11.49 a.m. until 9.30 a.m. on Wednesday, 16 November 2022.